Nuclear Weapons and the Rule of Law

Abstract

Since 1989, there has been a general sense that we are living through the end of an era of international relations. It is too early to say where we are headed, although there are certainly indications of an emerging world in which transnational markets and ethnic groupings matter more than the traditional politics of nation-states. It is not too early, however, to reflect on the age we are leaving behind. This essay looks back at the configuration of law and war as we have known them in the last century. Its point of departure is the recent decision by the International Court of Justice (the Court) on the legality of nuclear weapons. The threat posed by these weapons is so enormous, and their role in international affairs has been so central, that any adequate consideration of their relationship to international law requires a return to first principles. When the Court examined these first principles, it found itself puzzled by the silence of the law at the point of greatest threat to mankind and the planet. To its dismay, the Court had to contemplate the possibility that nuclear destruction in defense of the state may be within the logic of international law. Understanding the relationship of nuclear weapons to international law has become all the more pressing in light of the recent nuclear weapons tests by India and Pakistan.